Citation Nr: 1334471	
Decision Date: 10/29/13    Archive Date: 11/06/13

DOCKET NO.  08-05 650	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUE

Entitlement to service connection for diabetes mellitus type 2 (diabetes).  


REPRESENTATION

Appellant (Veteran) represented by:  The American Legion


WITNESSES AT HEARING ON APPEAL

Veteran and his spouse


ATTORNEY FOR THE BOARD

Christopher McEntee, Counsel 


INTRODUCTION

The Veteran served on active duty from February 1952 to November 1953.    

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona.  

In January 2008, the Veteran and his spouse presented testimony at a personal hearing before the RO, a transcript of which has been associated with the claims file.  In July 2013, the Board remanded this matter for additional development.      

In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim.  No relevant evidence has been added to either claims file since the most-recent supplemental statement of the case (SSOC) in August 2013.  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

The Veteran's current diabetes is not related to his reported exposure to chemicals during service.  


CONCLUSION OF LAW

Diabetes was not incurred in or aggravated by active service, and may not be presumed related to service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013).   


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

VA must provide notice and assistance to claimants for VA benefits.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  Proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).

In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.

In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits.

In the instant case, the Veteran was provided with satisfactory notice in August and September 2006.  The letters informed the Veteran of the evidence and information necessary to substantiate his claim for service connection, and informed the Veteran regarding his and VA's respective responsibilities in obtaining evidence and information.  The letters also informed the Veteran of the evidence and information necessary to establish a disability rating and an effective date.  Further, the letters were provided to the Veteran prior to the initial unfavorable AOJ decision issued in November 2006.   

With regard to VA's duty to assist, the record indicates that in the notification letter, the RO requested from the Veteran information regarding medical evidence pertaining to his claim for service connection.  The record shows that the RO included in the claims file the Veteran's service treatment records (STRs) as well as relevant private and VA treatment records and reports.  Furthermore, pursuant to the July 2013 remand, the Veteran underwent VA compensation examination into his claim in August 2013, a report and opinion of which is of record.  In the report, the VA examiner detailed the nature of the Veteran's disorder, indicated a review of the claims file, and noted findings based on the Veteran's lay statements, on the evidence of record, and on the examination of the Veteran.  The findings are supported by data and reasoned explanations, moreover.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions").  

In sum, the Board finds that VA's duties to notify and assist have been substantially met.  

II.  The Claim to Service Connection

The Veteran contends that he incurred diabetes during active service as the result of exposure to a variety of chemicals.  Medical evidence of record, to include the August 2013 VA report, documents that the Veteran has been diagnosed with diabetes.  

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a).  For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  

Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309.  

If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection.  38 C.F.R. § 3.303(b).  The U.S. Court of Appeals for the Federal Circuit recently clarified that the continuity of symptomatology language in § 3.303(b) is limited to chronic diseases found in 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Under 38 C.F.R. § 3.309(a), diabetes is considered a chronic disease. 

Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, and who has one of the listed diseases under 38 C.F.R. § 3.309(e), shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service.  Listed under 38 C.F.R. § 3.309(e) is the disease of diabetes mellitus.  Nevertheless, the presumptive service connection provisions noted under this regulation do not apply here because the record shows that the Veteran did not serve between January 1962 and May 1975, and did not have service in Vietnam.  The Board's inquiry in this matter will be limited to whether a direct service connection finding under 38 C.F.R. § 3.303 would be warranted, or whether a presumptive service connection finding under 38 C.F.R. § 3.307 and § 3.309(a) would be warranted.  Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Ramey v. Brown, 9 Vet. App. 40, 44 (1996).  

In assessing claims for service connection, the Board is required to render a finding with respect to the competency and credibility of the lay evidence of record.  See Coburn v. Nicholson, 19 Vet. App. 427, 433 (2006).  Competent, credible lay evidence could be, in and of itself, sufficient to establish an elemental fact necessary to support a finding of service connection.  Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007).  

A Veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived, that is, experienced, were directly through the senses.  38 C.F.R. § 3.159 (competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses).

Lay evidence may also be competent to establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional.  Jandreau, 492 F. 3d at 1377.  Also, a veteran as a layman is competent to offer an opinion on a simple medical condition.  Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau). 

VA must consider the competency of the lay evidence and cannot outright reject such evidence on the basis that such evidence can never establish a medical diagnosis or nexus; however, this does not mean that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where the layman is competent and does not otherwise require specialized medical training and expertise to do so, i.e., the Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence.  See Davidson, 581 F. 3d at 1316 (recognizing that, under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition; he or she is reporting a contemporaneous medical diagnosis; or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional).  

Once competency is established, as a fact finder, the Board is also obligated to determine whether lay evidence is credible in and of itself.  The Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence, but it may consider a lack of contemporaneous medical evidence as one factor in determining the credibility of lay evidence.  Buchanan v. Nicholson, 451 F. 3d 1331, 1336-1337 (Fed. Cir. 2006).  Credibility is a factual determination going to the probative value of the evidence, to be made after the evidence has been admitted or deemed competent.  Cartwright v. Derwinski, 2 Vet. App. 24 (1991).  

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Hence, the Board will summarize the relevant evidence where appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. 

As noted earlier, the evidence establishes that the Veteran currently has diabetes.  Moreover, given the timeframe of the Veteran's service, the Board finds that it is probable that he was exposed to chemicals during service as he claims.  The record documents that the Veteran served in the U.S. Air Force in the early 1950s as an electrician.  He asserts that pursuant to his duties, he was exposed to a variety of chemicals during service, which he maintains caused his diabetes.  He particularly noted his exposure to chlorine during service while working around a sewage plant and a swimming pool.  During his January 2008 hearing, he testified in detail regarding the asserted exposures.  The Board found his testimony to be credible.  See Caluza v. Brown, 7 Vet. App. 498 (1995) (in weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness).   

However, a service connection finding for diabetes is unwarranted because the evidence does not indicate that the Veteran incurred diabetes during service or developed the disorder within one year of his 1953 discharge from active duty.  38 C.F.R. §§ 3.303, 3.307, 3.309.  The Veteran's STRs are negative for diabetes.  The October 1953 discharge report of medical examination noted the Veteran's urinalysis testing as normal, and found the Veteran's endocrine system to be normal.  The earliest evidence of record addressing diabetes, found in VA treatment records dated in May 1999, indicates onset of diabetes in the late 1990s, over 45 years after discharge from active service.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability may be considered in evaluating a claim of service connection).  Furthermore, there is no medical nexus evidence supporting the Veteran's claim to service connection.  Rather, the only medical professional to comment on the Veteran's claim - the August 2013 VA examiner - found the Veteran's diabetes and his service to be unrelated.  

In the August 2013 VA report, the examiner stated that the Veteran's diabetes "was less likely than not" incurred in service.  Specifically, he stated that,

Although there is some emerging evidence that a variety of environmental contaminants may be risk factors for the development of diabetes, these findings are tentative, and other risk factors continue to be considered most important in most cases.  This Veteran is morbidly obese (current BMI 42), and this, along with constitutional susceptibility factors that are often inherited, is likely to be the cause of his diabetes.

The examiner further stated that he "could find no well grounded body of scientific evidence supporting chlorine per se [as] a risk factor for diabetes (although poorly backed assertions to all types of risks due to chlorine can be found on the Internet and in non-peer reviewed publications."  He then indicated that while "some chlorinated substances (including... the contaminant in Agent Orange that is felt to be the primary cause of Agent Orange toxicity, including diabetes) have been implicated as probable causal factors for diabetes given intense enough exposure,"  there was no specific indication of such intense exposure in this Veteran.  He concluded that "based on the available evidence, his obesity is a much more likely cause of his diabetes."

The Board finds the August 2013 VA opinion to be of significant probative value.  The examiner indicated a review of the relevant evidence of record, indicated a personal assessment of the Veteran, and indicated evaluation of the Veteran's lay statements regarding his symptoms.  The examiner supported his opinion with a rationale.  His explanation was reasonable and was consistent with the evidence of record, particularly the medical evidence indicating onset of diabetes over 45 years following service.  See Bloom v. West, 12 Vet. App. 185, 187 (1999) (a physician's statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion).  As such, the Board places great weight on this unchallenged medical opinion.  

On the issue of medical nexus, the Board has considered the Veteran's lay assertions, particularly his statements during his hearing, and his written statements submitted into the record, that the exposure to chemicals in service caused his current disability.  As indicated earlier, the Veteran may be competent to testify regarding his in-service exposure to chemical agents pursuant to his rating as an electrician.  However, his assertion regarding the relationship between such exposure and the development of diabetes is of limited probative value because he is not competent to render such a determination.  The disease of diabetes involves a pathology of the endocrine system, which is beyond the capacity for lay observation.  Its etiology and development cannot be determined through observation or by sensation such as feeling.  The Veteran is simply not competent to render a medical opinion regarding the way in which his diabetes developed.  He does not have the training and expertise to provide medical evidence connecting service to the symptoms, or connecting the symptoms to the disorder at issue.  The Veteran cannot provide evidence that states that what he experienced during service, or has felt since service, resulted in diabetes.  On this essentially medical question, the Veteran's statements are not probative.  As such, the Board places limited weight on the Veteran's lay assertions regarding the issue of etiology.       

On the issue of medical nexus, the Board also considered articles the Veteran submitted into the record which detail chemical contamination of military sites in the US, and which tend to indicate a possible connection between exposure to chemicals and the development of illnesses such as diabetes.  These articles are of limited probative value as well.  Though the articles add substance to the Veteran's theory of causation, none addresses the Veteran's case specifically.  Sacks v. West, 11 Vet. App. 314 (1998).  Further, as noted by the August 2013 VA examiner when discussing the articles, generally speaking, the internet and non-peer-reviewed publications contain many "poorly backed assertions to all types of risks due to chlorine[.]"  As such, the Board places limited weight on the studies submitted into evidence.  

In sum, the record establishes that the Veteran has diabetes.  However, the preponderance of the evidence of record demonstrates that he did not incur his diabetes during service, or within one year of his 1953 discharge from service.  In contrast to the limited evidentiary value noted in the lay statements and articles submitted into evidence, the Board has assigned great weight to the findings noted in the August 2013 VA examiner's report.  As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied.  38 U.S.C.A. § 5107(b); Gilbert, supra.  


	(CONTINUED ON NEXT PAGE)
ORDER

Entitlement to service connection for diabetes mellitus type 2 is denied.  



____________________________________________
BETHANY L. BUCK
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs